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63 FLRA No. 46
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF JUSTICE
FEDERAL CORRECTION INSTITUTION
February 18, 2009
Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert B. Hoffman filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator determined that the Agency violated the parties' master collective bargaining agreement, as alleged. The Union excepts to the remedy fashioned by the Arbitrator because it did not include a status quo ante order. For the reasons that follow, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Agency notified the Union of its intent to eliminate four posts on the day watch in the next quarterly roster. The Agency refused to engage in impact bargaining concerning the elimination of the posts because it asserted that the issue was covered by Article 18 of the parties' agreement. See Award at 11. The Union filed a grievance over the Agency's refusal to bargain, which was subsequently submitted to arbitration. The Arbitrator did not set forth particular issues to be resolved.
As relevant here, the Arbitrator concluded that the Agency's decision to make the roster changes was not negotiable. [n1] The Arbitrator found, however, that the Agency was required to bargain over the adverse effects of its decision. See id. at 17-18. The Arbitrator refused to order a status quo ante remedy because in his view, doing so would affect management's rights. See id. at 19. Instead, the Arbitrator ordered the parties to engage in impact bargaining over arrangements for adversely affected employees. See id.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is contrary to law because the Arbitrator should have required a status quo ante remedy. The Union asserts that the award does not provide a "meaningful remedy" for the Agency's improper refusal to bargain. Exceptions at 1. The Union also contends that the remedy fails to draw its essence from Article 3, Section c of the parties' agreement [n2] and that the Arbitrator exceeded his authority in "making a determination to relieve the Agency of [i]mplementation negotiations." Id. at 2. The Union also contends that the remedy is "fashioned on nonfact." Id. at 3. Specifically, the Union states that the Arbitrator erroneously determined that a status quo ante remedy would improperly affect management rights.
B. Agency's Opposition
The Agency maintains that the Union's exceptions provide no basis for finding the award deficient. See Opposition at 4-5 (citing AFGE, Council 215, Nat'l Council of SSA, OHA Locals, 46 FLRA 1518, 1523 (1993)). According to the Agency, there is no record evidence to support the exceptions. [ v63 p119 ]
IV. Analysis and Conclusions
A. The Arbitrator's Award Is Not Contrary to Law.
When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Union excepts only to the Arbitrator's failure to provide a status quo ante remedy. However, the Union cites to no agreement provision or case precedent requiring a status quo ante remedy. [n3] See, e.g., NTEU, Chapter 68, 57 FLRA 256, 257 (2001) (union failed to establish that status quo ante remedy was required). We note that arbitrators are accorded substantial latitude in developing appropriate remedies. See id. at 257. Accordingly, the Union has failed to establish that the award is contrary to law and we deny the exception.
B. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement.
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
According to the Union, the Arbitrator's failure to provide a status quo remedy evidences a manifest disregard for Article 3, Section c of the parties' agreement. Exceptions at 2. In this regard, the Union is correct that Article 3, Section c refers to bargaining "prior to implementation" of various policies and procedures. See note 2, supra. However, the Union fails to establish that this provision addresses remedies in general or that the provision specifically requires the Arbitrator to issue a status quo ante remedy in the circumstances of this case. As such, the Union has not demonstrated that the award fails to draw its essence from the parties' agreement. See, e.g., Nuclear Regulatory Comm'n v. FLRA, 895 F.2d 152 (4th Cir. 1990). Accordingly, we deny the exception.
C. The Arbitrator Did Not Exceed His Authority.
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See United States Dep't of the Army, Corps of Engineers, Memphis Dist., Memphis, Tenn., 52 FLRA 920, 924 (1997).
The Union maintains that the Arbitrator exceeded his authority by "making a determination to relieve the Agency of [i]mplementation negotiations." Exceptions at 2. However, the Union makes no claim that the Arbitrator failed to resolve an issue submitted to arbitration or resolved an issue not submitted to arbitration. The Union also points to no specific limitation in the agreement concerning the Arbitrator's remedial authority. As such, the Arbitrator did not exceed his authority by requiring a "negotiable impact remedy that goes to appropriate arrangements[.]" Award at 19. See, e.g., United States Dep't of the Air Force, Luke Air Force Base, Phoenix, Ariz., 62 FLRA 214, 215 (2007) (Chairman Cabaniss dissenting; Member Pope dissenting as to other matters) (excepting party failed to identify a specific contractual limitation on arbitrator's remedial authority); AFGE, Local 4044, Council of Prisons Local 33, 57 FLRA 98, 99 (2001) (arbitrator did not exceed his authority where he did not disregard specific limitations on his authority and award is directly responsive [ v63 p120 ] to the issues before him). In these circumstances, we find that the Union has not demonstrated that the Arbitrator exceeded his authority and deny the exception.
D. The Award Is Not Based on a Nonfact.
To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See NFFE, Local 1984, 56 FLRA 38, 41 (2000). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id. In addition, an arbitrator's conclusion that is based on an interpretation of the parties' collective bargaining agreement does not constitute a fact that can be challenged as a nonfact. See NLRB, 50 FLRA 88, 92 (1995).
The Union contends that the Arbitrator's remedy is based on a nonfact. The Union, however, does not point to any specific fact that is clearly erroneous. Instead, the Union claims that a return to status quo ante would not affect the Agency's management rights. As the Union does not contest a factual finding, but instead disputes an arbitral interpretation of law and/or contract, the Union's contention provides no basis for finding the award deficient. See, e.g., AFGE, Council 215, 60 FLRA 461, 466 (2004) (legal conclusion regarding whether a party violated the Statute did not constitute a fact for purposes of nonfact analysis); United States Dep't of the Treasury, IRS, Kansas City Field Compliance Serv., 60 FLRA 401, 402 (2004) (interpretation of parties' agreement did not constitute a fact for purposes of nonfact analysis). Accordingly, we deny the exception.
The Union's exceptions are denied.
Footnote # 1 for 63 FLRA No. 46 - Authority's Decision
Footnote # 2 for 63 FLRA No. 46 - Authority's Decision
When notified by the other party, [to] meet and negotiate on any and all policies, practices, and procedures which impact conditions of employment, where required by 5 USC 7106, 7114 and 7117, and other applicable government-wide laws and regulations, prior to implementation of any policies, practices and/or procedures.
Award at 12-13.
Footnote # 3 for 63 FLRA No. 46 - Authority's Decision
We note that there is no indication that an unfair labor practice was grieved, but even if it had been, the Authority defers to the arbitrator's discretion in fashioning a remedy unless: (1) another remedy is required by law; or (2) the disputed remedy constitutes a patent attempt to achieve "ends other than those which can fairly be said to effectuate the policies of the [Statute]." NTEU, 48 FLRA 566, 572 (1993).